barbri mbe sets

The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross-examination of the witness, the prosecutor asked, "Weren't you on the jury that acquitted the defendant of another criminal charge?"

What is the best reason for sustaining an objection to this question?

AThe question goes beyond the scope of direct examination.

BThe probative value of the answer would be substantially outweighed by its tendency to mislead.

CThe question is a leading question.

DPrior jury service in a case involving a party renders the witness incompetent.

B

This question raises several different issues: competency of witnesses, use of leading questions on cross-examination, the proper scope of cross-examination, and the probative value/prejudicial impact balancing test. Through a process of elimination, (B) emerges as the correct answer. (D) is incorrect. Under the Federal Rules, virtually all witnesses with personal knowledge are competent to testify. [Fed. R. Evid. 601] A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness's testimony unpersuasive, but it would not make it inadmissible. (C) is incorrect because ordinarily, leading questions are permitted on cross-examination. [Fed. R. Evid. 611(c)] The prosecutor's question is a leading question, but that is perfectly permissible, especially in a case like this, where the alibi witness is not "friendly" toward the prosecution. (A) is incorrect because cross-examination is generally limited in scope to the subject matter of the direct examination and matters affecting the credibility of the witness [Fed. R. Evid. 611(b)], and the prosecutor's question is, in a roundabout way, an attempt to impeach the witness's credibility. The implication behind the question is that if the witness had served on a jury that acquitted the defendant of another criminal charge, the witness would be inclined to think the defendant innocent of the pending charge. Alternatively, the implication behind the question could be that the witness is the kind of person who is "soft on crime" and for that reason is not a credible witness. In either event, because the question is an attempt to impeach the witness's testimony, it is within the proper scope of cross-examination. This leaves (B) as the remaining correct answer. (B) is not unquestionably correct, because the probative value/prejudicial impact balancing test found in Rule 403 is weighted heavily toward admission of evidence. For evidence to be excluded under this balancing test, its probative value must be substantially outweighed by its prejudicial impact. Nevertheless, in this case, a plausible reason for sustaining an objection to the prosecutor's question is that the probative value of the answer would be substantially outweighed by its tendency to mislead. The question and answer would inevitably let the jury know that the defendant had been previously charged with a crime. This information could be highly prejudicial to his defense. Because the question and answer have little probative value (the negative inferences pertaining to the witness's credibility being very weak), it is reasonable to sustain an objection to the question on the basis that its probative value is substantially outweighed by its prejudicial impact.

A state Occupational Health and Safety Board recently issued regulations valid under its statutory mandate requiring that all employers in the state provide ionizing air purification systems for all employee work areas. These regulations replaced previous guidelines for employee air quality that were generally not mandatory and did not specify the method of air purification used.

The requirements regarding air purification systems are likely to be unconstitutional as applied to which of the following employers?

AA wholly owned subsidiary of a Japanese corporation with seven retail outlets within the state.

BThe state supreme court, which recently completed construction of its new courthouse with a non-ionizing air purification system which the builder is contractually bound to maintain for the next three years.

CA United States Armed Forces Recruiting Center located adjacent to the state capitol building.

DA privately operated community service center funded by donations and constructed through use of a loan provided by the United States Veterans Administration and repayable to that agency.

The armed forces recruiting center is least likely to be required to comply with the new state law. A state has no power to regulate activities of the federal government unless Congress consents to the regulation. Accordingly, agents and instrumentalities of the federal government, such as the armed forces recruiting center, are immune from state regulations relating to performance of their federal functions. (D) is incorrect because, although the recreation center's construction was funded by a loan from the Veterans Administration, the center itself is privately operated and funded by donations. As a result, the center has only a tenuous connection with the federal government, so that it cannot claim the immunity afforded to a federal agency or instrumentality. Accordingly, in the same sense as is employed in the federal tax immunity cases, the agency does not "stand in the shoes" of the federal government. Thus, the application of the state regulations to the recreation center would not present constitutional problems. (A) apparently refers to the principle that the power to regulate foreign commerce lies exclusively with Congress. However, the mere fact that the regulated outlets are part of a wholly owned subsidiary of a Japanese corporation does not mean that the state regulations affect foreign commerce. The subsidiary's activities are conducted entirely within the state, and do not touch upon foreign commerce in any way. Therefore, application of the regulations so as to require the subsidiary to provide an ionizing air purification system for its employee work areas will not constitute a proscribed state regulation of foreign commerce. Thus, (A) is incorrect. (B) is more troubling, but does not offer as compelling an argument as (C). The Contract Clause limits the ability of states to enact laws that substantially impair contract rights (i.e., destroy most or all of a party's rights under an existing contract). Under the Clause, the Supreme Court will subject state actions that impair their own contracts to strict scrutiny. In any case, even if state action substantially impairs rights under an existing contract, the action still may be upheld if it: (i) serves an important and legitimate public interest; and (ii) is a reasonable and narrowly tailored means of promoting that interest. Here, the state supreme court, as an instrumentality of the state, would probably not have grounds for complaining that its rights under the contract have been impaired, but the builder might have grounds (e.g., the builder might have future economic interests during the three-year service period that will be substantially impaired if the court is required to install an ionizing system). Nevertheless, the regulation still may be valid if the state can prove that it truly serves the important public interest of protecting the health and safety of workers in the state and is narrowly tailored to promoting that interest. In any case, because it is uncertain whether the vendor's rights have been substantially impaired and, if so, whether the state can prove the worth of the regulation, (C) is a better choice.

The federal government recently constructed a radio telescope in Puerto Rico. In addition to receiving radio signals, the telescope was set up to beam radio waves far out into space. As part of the bill providing for operational funding for the facility, Congress provided for a program to "inform any aliens who might be listening in outer space of the 'American Way of Religion.'" A $10 million appropriation was provided; any religious group whose membership exceeded 500 members in the United States was permitted to prepare a five-minute presentation, and the federal government would pay for the recording of the presentations and broadcast them into space using the transmitter in Puerto Rico. The President signed the bill and it became law. A religious group with a large following in Europe, but only 100 members in the United States, protested and filed suit.

Will the court find the religious broadcasts to be constitutional?

AYes, because the power to regulate commerce with foreign nations and among the several states implies that commerce with outer space is included as well.

BYes, because the commerce power is not limited by First Amendment prohibitions.

CNo, because the requirement of a minimum number of members violates the First Amendment.

DNo, because the broadcasts are a waste of money and exceed the spending powers of Congress.

C

The court will find that the requirement of a minimum number of members violates the Establishment Clause of the First Amendment. The Establishment Clause prohibits any law "respecting an establishment of religion." While usually a three-part test based on Lemon v. Kurtzman is used to determine whether legislation creates improper government involvement with religion, the "compelling government interest" test is used if a law or government program discriminates among religions. Here, the law differentiates among different religious groups, allowing only those with larger memberships to record presentations. There is no compelling government interest for discriminating among the religious groups in this way; thus the legislation is unconstitutional. (A) is incorrect despite the fact that the federal power to regulate commerce could be interpreted as extending to commerce with outer space should the occasion arise. Nevertheless, the commerce power does not override independent constitutional restrictions (e.g., the Establishment Clause) on the conduct in question here. (B) is an incorrect statement of law. The federal commerce power cannot be used to abrogate freedom of speech or to discriminate in favor of religious groups. An exercise of the commerce power generally is subject to all limitations placed on government by the Constitution, including those of the First Amendment. (D) is incorrect. Regardless of merit, almost all expenditures made by Congress are permissible under its spending power. [U.S. Const. art. I, §8] Rather than limit the power only to spending for accomplishment of other enumerated powers, this provision grants Congress broad power to spend for the "general welfare" (i.e., any public purpose). As long as the expenditure is not conditioned on requiring a recipient to forgo an individual constitutional right, it is within the spending power of Congress.

On December 6, the owner of an electronics store sent a written request to a computer manufacturer asking for the price of a certain laptop computer. The manufacturer sent a written reply with a catalog listing the prices and descriptions of all of his available computers. The letter stated that the terms of sale were cash within 30 days of delivery. On December 14, by return letter, the store owner ordered the computer, enclosing a check for $4,000, the listed price. Immediately on receipt of the order and check, the manufacturer informed the store owner that there had been a pricing mistake in the catalog, which should have quoted the price as $4,300 for that computer. The store owner refused to pay the additional $300, arguing that his order of December 14 in which the $4,000 check was enclosed was a proper acceptance of the manufacturer's offer.

In a suit for damages, will the manufacturer prevail?

AYes, because his first communication stated terms calling for cash within 30 days of delivery.

BYes, because of the mistake as to price.

CYes, because his first communication did not constitute an offer.

DNo, because the store owner's December 14 letter was a proper acceptance of the manufacturer's offer.

D

The store owner's December 14 letter was an acceptance. Whether the letter was an acceptance depends on whether the manufacturer's letter was an offer, because an acceptance is a manifestation of assent to an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms. Courts usually hold that if a statement is made broadly, such as in an advertisement or catalog, it will not constitute an offer because it is not reasonable to expect that the sender intended to make offers to all who received the advertisement; rather, the courts usually find such advertisements to be invitations seeking offers. However, price quotations may be considered as offers if given in response to a specific inquiry. The courts will look to the surrounding circumstances, and here a court would probably determine that the catalog that the manufacturer sent was an offer because it was sent in response to the store owner's specific inquiries about prices on a specific computer and it included delivery terms and conditions of sale. (A) is incorrect because although the letter called for payment in cash, tender by check is sufficient unless the seller demands legal tender and gives the buyer time to obtain cash. Moreover, because the contract called for payment within 30 days of delivery, even if the check was not sufficient, the store owner still had time under the contract to obtain cash. (B) is incorrect because the mistake was unilateral. Generally, a unilateral mistake will not be grounds to rescind a contract unless the nonmistaken party knew or should have known of the mistake. Here, nothing in the facts indicates that the store owner knew of the mistake, and the mistake was not so large that it could be said that he should have known of it. (C) is incorrect because, as explained above, the manufacturer's catalog was sent in response to the store owner's request for information and his terms for sale constituted an offer.

A city council passed an ordinance providing: "No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities."

If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance?

AStrike it down, because it violates First Amendment rights of free speech and freedom of association.

BStrike it down as a violation of due process, because no hearing mechanism has been provided for.

CUphold it, because the city council has a legitimate interest in controlling such contributions.

DDismiss the case, because it involves a political question and is thus a nonjusticiable matter.

A

The federal court should strike the ordinance for violating the First Amendment. While the government may limit the amount of contributions that an individual can contribute to a candidate's campaign (to avoid corruption or the appearance of corruption), the government may not limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association. (B) is incorrect because the Due Process Clause does not require that every law provide for a hearing, but rather only those laws involving the deprivation of life, liberty, or property of an individual. The law here does not involve a deprivation of life or property, and liberty is not being denied to individuals on a judicial basis (i.e., according to the facts of each case), but rather is being denied to all persons on a legislative basis. In such a case, individual hearings are not required to satisfy due process; as long as the law was lawfully adopted (e.g., with notice to all interested parties), the Due Process Clause has been satisfied. (C) is incorrect because a legitimate interest in controlling contributions to a political committee for ballot referendum is not enough. The statute must be "closely drawn" to match a "sufficiently important interest," which is an intermediate scrutiny standard, and the Supreme Court has invalidated limitations on contributions to influence referendum elections. (D) is incorrect because political questions, which are nonjusticiable, arise when the issue is committed to another branch of the government by the Constitution or is incapable of resolution and enforcement by the judiciary. Determining whether a law is valid is within the realm of the judiciary and certainly is capable of resolution (i.e., the law could be invalidated). Thus, there is no political question here.

A husband was on trial for the murder of his wife. During the course of the trial, the prosecution sought to introduce evidence that, six months before the wife's death, the husband had purchased a large insurance policy on her life, and two weeks prior to her death he purchased two more large policies on the wife's life from separate insurance carriers. All notice requirements have been met.

If the defense objects to admission of such evidence, should the objection be sustained?

AYes, because such evidence would be more prejudicial than probative.

BYes, because evidence of insurance is inadmissible as a matter of public policy.

CNo, because the evidence tends to establish motive.

DNo, because the evidence tends to establish criminal propensity.

Evidence of the husband's purchases of insurance on the wife's life shortly before her death is admissible because it has a tendency to make the husband's murder of his wife more probable than it would be without the evidence. As a general rule, all relevant evidence is admissible if offered in an unobjectionable form or manner, as is the case here. This evidence is relevant because it establishes a motive for the murder, and facts showing motive for doing an act are circumstantial evidence that the act was done. Because there are no other grounds for excluding the evidence, it should be admitted. (A) is incorrect because exclusion of evidence on the ground of prejudice is a matter within the trial judge's broad discretion, and Federal Rule 403 requires that the evidence's probative value be substantially outweighed by the danger of unfair prejudice for it to be excluded. While all evidence is prejudicial to the adverse party, "unfair" prejudice refers to evidence that suggests a decision on an emotional or otherwise improper basis; evidence of the purchase of life insurance policies does not fall within this category. (B) is incorrect because it misapplies the rule excluding evidence of insurance. Federal Rule 411 excludes evidence of liability insurance on the issue of whether a person acted negligently or wrongfully. Evidence of insurance coverage (particularly where it is life insurance on the life of a homicide victim) is relevant and admissible for other purposes. (D) is incorrect for two reasons: First, the purchase of insurance does not establish a criminal disposition or a propensity to do criminal acts. Second, evidence of conduct offered to show criminal propensity is inadmissible character evidence under Federal Rule 404. Thus, if the evidence were offered to show criminal propensity, the objection should be sustained, not overruled. On the other hand, evidence of prior conduct (or misconduct) is specifically admissible under Rule 404(b) to show the defendant's motive, which is what the insurance evidence is intended to show.

A homeowner sued a plumber for breach of contract. At trial, the homeowner intends to testify about statements the plumber made to him during a conversation in the homeowner's kitchen. This conversation had been recorded on video by the homeowner's "nanny cam," but the recording is unavailable due to a technical failure outside of the homeowner's control.

Is the homeowner's testimony admissible?

AYes, because the homeowner has personal knowledge of the conversation.

BYes, because the homeowner has a valid excuse for not producing the video recording.

CNo, because the videotape is the best evidence of the conversation.

DNo, because the testimony contains hearsay not within any exception.

The homeowner's testimony is admissible because the homeowner has personal knowledge of what the plumber said during their conversation—the homeowner was present and heard the plumber's statements himself. (B) is incorrect. The best evidence rule would be applicable if the homeowner's knowledge of the plumber's statements had resulted from having watched the video recording, but that was not the case here—the homeowner knows what the plumber said because he was present at the time. The video recording might be more persuasive to a jury, but the best evidence rule does not apply and the homeowner is free to testify about the conversation. (C) is incorrect. The best evidence rule provides that if the proponent cannot produce the original recording in court, he may offer secondary evidence of its contents (including oral testimony). However, because the best evidence rule does not apply here (as discussed above), the homeowner does not need to provide any excuse for not producing the video recording. (D) is incorrect because the plumber's statements are not hearsay. The homeowner is offering the plumber's own statements against him. Even if the homeowner is offering the statements for the truth of the matter asserted therein, statements by a party-opponent are not hearsay.

A corporation whose subsidiaries include a major hotel chain planned to build a new hotel and advertised for bids to build the hotel within the next six months. Four bids were received, for $17 million, $17.2 million, $17.4 million, and $15 million. The corporation's chief financial officer reviewed the bids, then emphatically told the corporation's chief executive officer ("CEO") that there was "no way" the low bidder could make a profit on the $15 million bid. The CEO made no response.

In fact, the builder had stayed up for 72 hours without sleep preparing the bid for the hotel project and had neglected to include the plumbing expenses in the bid. Typically, the cost of plumbing, including the shop's profit, would have been about $2 million.

Shortly after the $15 million contract was signed by the CEO and the builder, the builder discovered his mistake and telephoned the CEO to tell her that he had forgotten to include the cost of plumbing, adding that he would normally charge $2 million for plumbing. The CEO agreed to pay the additional $2 million, but this arrangement was never reduced to writing. After the builder completed the project on time, the CEO sent him a check for only $15 million.

Can the builder compel the CEO to tender the additional $2 million?

AYes, because the CEO was on notice of the builder's mistake.

BYes, because the builder relied to his detriment on the CEO's promise.

CNo, because the builder had a preexisting legal duty to complete the project for $15 million.

DNo, because evidence of the agreement to pay the additional $2 million is barred by the parol evidence rule.

A

The builder will be able to compel the CEO to pay the additional $2 million because the CEO was on notice of the mistake. The builder has the defense of unilateral mistake. Although the general rule is that a contract will not be avoided by a unilateral mistake, there is an exception where the nonmistaken party either knew or should have known of the mistake. Here the facts clearly indicate that the CEO knew that the builder's bid could not be correct, yet relied on it anyway. Thus, the builder had grounds to avoid the contract. Rather than completely avoid the contract here, the parties agreed to reform it, but they failed to record the reformation in writing. Nevertheless, the court will allow the parties to show the reformed terms because of the mistake. (B) is incorrect because the fact that the builder relied to his detriment on the CEO's promise would not allow him to collect the additional $2 million. Detrimental reliance is a factor in promissory estoppel, which is a doctrine used by the courts to avoid an unjust outcome when there is no contract. Here, there is a contract supported by consideration, so this doctrine does not apply. The builder is entitled to reformation of the bargained-for contract because the CEO was on notice of the builder's mistake. In addition, even if this were a proper case for promissory estoppel, the builder would not necessarily be entitled to the $2 million. Courts that follow the Second Restatement approach typically award reliance, not expectation, damages. (C) is incorrect because the unilateral mistake here was sufficient to discharge the builder from his duties under the contract, so there was no preexisting duty. (If the mistake had not been sufficient to discharge the builder, (C) would be correct because where one is under a preexisting legal duty to perform, performance of that same duty generally will not be sufficient consideration to support a promise to pay additional sums for the performance.) (D) is incorrect because the parol evidence rule only prevents introduction of oral statements made prior to or contemporaneously with a written contract. Here, the $2 million term, although oral, was agreed upon after the original contract was made; thus, the parol evidence rule would not be a bar.

A builder contracted to build a house for a newly married couple. Terms of the contract provided that the builder would receive the contract price when the building was fully completed. Just when the builder had completed one-half of the structure, a tornado struck the area and demolished the building.

What is the builder entitled to recover from the couple under the contract?

ANothing.

BOne-half of the contract price.

COne-half of the fair market value of what remains of the house.

DCost of materials and reasonable labor costs.

A

The builder will not be able to recover anything from the couple under the contract because he has not performed his duty. Under the parties' contract, the builder's completion of the house was a condition precedent to the couple's duty to pay. The condition precedent was not discharged by the destruction of the work in progress because construction has not been made impossible, but rather merely more costly—the builder can rebuild. Thus, he is not entitled to any recovery. Note, however, that a number of courts will excuse timely performance because the destruction was not the builder's fault. (B) is incorrect because the contract is not divisible (i.e., it is not divided into an equal number of parts for each side, each part being the quid pro quo of the other); thus, completion of one-half of the house did not entitle the builder to one-half of the price. (C) is incorrect because it is not a correct measure of recovery. As stated above, the builder cannot recover under the contract. However, he could recover restitution if he determined that he could not perform under the contract by rebuilding. Restitution is a remedy that prevents unjust enrichment by imposing on a recipient of requested goods or services a duty to pay for the benefit received when there is a failed contract or no contractual relationship between the parties. The measure of recovery here would be the fair market value of what remains of the house because that is the benefit conferred—it would not be cut in half merely because the house was only half completed. (D) is an incorrect contract recovery because the builder has not fulfilled the condition precedent to the couple's duty to pay. The only way the builder could recover anything would be in an action for restitution. Sometimes, in cases where there is little or no benefit to the other party, the measure of restitutionary recovery is the detriment suffered by the plaintiff. However, when the plaintiff is in breach, the courts that permit recovery limit it to the contract price less damages caused by the breach. Because the builder only did half of the work, he is in breach by not rebuilding the house. Hence, the couple's damages, which involve building an entirely new house, outweigh any possible restitution to the builder.

A witness is called in a contract action between a plaintiff and a defendant. The witness takes his oath and testifies. During cross-examination, the defendant's attorney asked the witness this question: "Isn't it true that even though you took an oath to tell the truth so help you God, you are an atheist and don't even believe in God?"

Upon the proper objection, will the judge require that the witness answer this question?

AYes, because the question is relevant to the witness's character for truthfulness.

BYes, because instead of taking the oath, the witness could have requested to testify by affirmation without any reference to God.

CNo, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.

DNo, because an attack on the competency of a witness must be made at the time the witness is sworn.

C

The judge should not require that the witness answer the question because evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person's religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness's religious beliefs or opinions are not admissible to show that the witness's credibility is thereby impaired or enhanced. Thus, (C) is correct and (A) is incorrect. (B) is incorrect. While it is true that the witness could have requested a different type of oath, Rule 610 prohibits this type of question because it would have shown his lack of religious beliefs. (D) is incorrect because, as discussed above, lack of religious belief is no longer a basis for disqualification; thus, this would not constitute an attack on the witness's competency.

A town in a rural state facing financial difficulties passed a variety of "sin taxes," including one aimed at electronic game arcades frequented by local juveniles. The tax is a one cent per game tax imposed on the manufacturers of the games based on the estimated number of plays over a machine's lifetime. There are no electronic game manufacturers in the state.

Which of the following constitutional provisions would support the best argument against enforcement of the tax?

AThe Equal Protection Clause.

BSubstantive due process.

CThe Privileges and Immunities Clause of Article IV.

DThe Commerce Clause.

D

The best argument against enforcement of the tax is that it violates the Commerce Clause. If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce or unduly burden it. Here, the tax does not discriminate against interstate commerce, since it does not single out interstate commerce for taxation in order to benefit the local economy. However, it could be argued that the tax unduly burdens interstate commerce. A local tax will be held to unduly burden interstate commerce if the locality's need for the revenue does not outweigh the burden on interstate commerce. The Supreme Court will consider whether there is a substantial nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state. Here, there is little nexus between the manufacturer and the town. The facts indicate that out-of-state manufacturers' machines are used in the town, but do not indicate whether the manufacturers conduct any selling activity in the town. Similarly, nothing indicates that there is a relationship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would probably be unconstitutional under the Commerce Clause. (A) is not as good an argument as (D) because the Equal Protection Clause prohibits the states from treating similarly situated persons differently without sufficient justification. Where a classification does not involve a suspect or quasi-suspect class or a fundamental right, the classification will be upheld as long as it is rationally related to a legitimate government interest. While the tax here singles out arcade game manufacturers for special tax treatment, no suspect or quasi-suspect class is involved, nor is a fundamental right affected. Thus, the tax will be valid under the Equal Protection Clause because it is rationally related to the legitimate government interest of raising revenue. (B) is not a good argument because substantive due process requires that laws not be arbitrary. When laws do not involve a fundamental right, they will be held valid under the Due Process Clause as long as they are rationally related to a legitimate government interest. As established above, no fundamental right is involved and the tax is rationally related to a legitimate government interest. Thus, under the Due Process Clause the tax may be enforced. (C) is not a good argument because the Privileges and Immunities Clause of Article IV prohibits states from discriminating against out-of-state residents when a fundamental right is involved, and the tax here does not differentiate between residents and nonresidents.

A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter's high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview.

Will the principal's testimony likely be held to be admissible?

ANo, because the testimony would be hearsay not within any exception.

BNo, because a recording of the interview exists.

CYes, because the statement is being offered to show its effect on the principal.

DYes, because the principal personally saw the interview on television.

D

Because the principal had firsthand knowledge that the statement was made, his testimony will be admissible unless there is a specific rule excluding the evidence. Witnesses are generally presumed competent to testify until the contrary is demonstrated. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness's own testimony. (A) is incorrect. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made. (B) is incorrect. Because the principal had firsthand knowledge of the event he can testify about the event, even though there might exist a recording that would be better proof of the event. The "best evidence rule" does not apply because the recording is not an essential repository of the facts recorded. (C) is incorrect. Although the statement is not hearsay, it is not being offered to show its effect on the hearer (e.g., knowledge, motive), but rather to show that the statement was made, as explained above.

As part of legislation enacted for the stated purpose of improving science skills of schoolchildren, Congress appropriated funds to permit public school teachers who had been certified by state school districts as science lab instructors to provide supplemental science instruction to any students in either public or private schools who did not have access to science lab resources. To help ensure content neutrality, the statute required the instructors coming to the private schools to use portable science labs supplied by the public school districts, which contained the equipment and experiments that the instructors used for the same purpose in the public schools. A citizens' group filed suit in federal district court to challenge the constitutionality of funding the science teachers for private schools, alleging that most of the private schools covered by the statute were religiously affiliated schools. No members of the group have any children in either public schools or private schools affected by the statute.

How is the court likely to rule?

ADismiss the case on the pleadings, because the citizens' group does not have a sufficient stake in the controversy to have standing to challenge Congress's expenditure, which was authorized under its power to spend for the general welfare.

BDecide the case on the merits in favor of the government, because the legislation defines the context in which instruction can be provided in private schools so as to avoid excessive government entanglement with religion.

CDecide the case on the merits in favor of the citizens' group, because the appropriation's primary effect advances religion in violation of the Establishment Clause of the First Amendment.

DDecide the case on the merits in favor of the citizens' group, because the court will presume that any instruction provided on the premises of a religiously affiliated school will be influenced by religion.

B

The court will probably decide in favor of the government on the merits. Programs of aid to religiously affiliated grade schools and high schools are subject to the same three-part test as are other laws under the Establishment Clause: The program must (i) have a secular purpose, (ii) have a primary effect that neither advances nor inhibits religion, and (iii) not produce excessive government entanglement with religion. With respect to the first prong of the test, most of the time such programs (including this one) will have a secular purpose-to aid education. With respect to the second prong, the program may be deemed to have a primary effect that advances religion if it results in governmental indoctrination of religion or defines its recipients by reference to religion. Here, the statute establishes a religiously neutral program that funds a supplemental service for the schools, and offers the instruction to all disadvantaged students regardless of whether they choose to attend public or private schools. [See Agostini v. Felton (1997)-government program providing remedial education services to all disadvantaged children at their schools, including children at parochial schools, held not to violate the Establishment Clause] Thus, (C) is incorrect. (D) is incorrect because the courts will not presume that the instruction provided by this program will be influenced by religion. Furthermore, with respect to the "excessive entanglement" prong of the test, there is no indication that the program requires detailed monitoring of the government employees to prevent them from incorporating religion in their instruction-the equipment and experiments that they use in the private schools are the same as they use in the public schools. (A) is incorrect because the citizens' group has standing to challenge the expenditure on behalf of its members, who have a right to sue based on their status as federal taxpayers. The one recognized exception to the rule that people do not have standing as taxpayers to challenge the way tax dollars are spent by the federal government is if the expenditure was enacted under Congress's taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause. That exception applies here because the citizens' group is alleging that the federal appropriation is an unconstitutional attempt to provide government funds to religiously affiliated schools.

The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her intoxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self-defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that the records are inadmissible character evidence.

Should the court sustain the objection?

AYes, because the character of a victim can be established only by reputation or opinion evidence.

BYes, because there is no evidence that the incidents involving the three patrons were based on the same facts as the defendant's claim.

CNo, because the records were authenticated.

DNo, because the character trait of a victim may be established by opinion evidence, reputation evidence, or specific acts of misconduct.

The court should sustain the objection because the records are evidence of specific bad acts. The Federal Rules permit a defendant to introduce evidence of a bad character trait of the alleged victim if it is relevant to the charge or the defense, but limit it to reputation and opinion evidence. Evidence of specific acts of the person in question that demonstrates that person's character is permitted only in a few instances, such as if the acts are relevant to some issue other than disposition to commit the crime charged. Here, no issue is raised by this evidence other than the bouncer's propensity to use excessive force. (A) is therefore correct and (D) is wrong. (B) is wrong because the facts do not have to be identical if evidence of bad acts were otherwise admissible. (C) is wrong; documentary evidence, even if fully authenticated and relevant, may be excluded if it violates a rule of competency, such as the rule for character evidence. Here, the objection should be sustained because the document is improper evidence of a specific bad act.

A young man proposed to his girlfriend, but she was reluctant because of his meager income and lack of job potential. The young man told his father about her reluctance. The father told the girlfriend that if she married his son, he would support them for six months and send his son to a six-month computer technology training school. This was sufficient to dispel her reservations and the two were married very soon after. When they returned from their honeymoon, the father refused to go through with his offer. Although the girlfriend is happy in her marriage, she sued the father for damages.

If the father prevails, what is the likely reason?

AThe father's promise was not supported by valid consideration.

BThe contract is against public policy.

CThe contract was oral.

DThe girlfriend is happy and therefore has incurred no detriment.

If the father prevails, it will be because his promise to the young woman was not in writing. The Statute of Frauds requires that a contract in consideration of marriage must be evidenced by a writing to be enforceable. This includes any promise that induces someone to marry by offering something of value. Hence, the father's offer of support and education expenses is unenforceable. (A) is wrong because a promise to marry is a sufficient detriment to constitute valid consideration. (B) is wrong because there is no public policy against encouraging marriage. (D) is wrong because a person's pleasure or displeasure from performing a contractual duty is irrelevant as to whether performance constitutes consideration. The young woman agreed to do something that she was under no legal obligation to do in exchange for the father's promise of financial support; hence, consideration exists.

A department store buyer and a manufacturer of food processors entered into a written contract whereby the manufacturer would sell to the buyer 50 of its top-of-the-line models for $100 each. When the delivery arrived on May 15, several days early, the buyer noticed that the food processors were a different model that did not have all of the features as the top-of-the-line model that was ordered. The buyer contacted the manufacturer and told him that he was rejecting the food processors that were delivered to him and expected the manufacturer to send 50 top-of-the-line models immediately. The manufacturer replied that because of a backlog of orders that had not yet been filled, the top-of-the-line models could not be delivered until August 15. Because the department store had contracted with a restaurant to deliver three top-of-the-line models by May 31, the buyer delivered three of the nonconforming food processors along with a promise to replace them with three top-of-the-line models in mid-August. The buyer returned the remaining food processors to the manufacturer.

How much could the department store recover from the manufacturer for the three food processors that it delivered to the restaurant?

ANothing, because they were resold to another.

BNothing, because it accepted them knowing they were defective.

CThe difference between the market price of the top-of-the-line models and the existing food processors' actual value.

DThe difference between the existing food processors' actual value and the cost of the food processors that the department store must provide to the restaurant in mid-August.

C

The department store was entitled to recover contract damages from the manufacturer for the three food processors that it accepted. If the buyer accepts goods that breach one of the seller's warranties, the basic measure of damages is the difference between the value of the goods as delivered and the value they would have had if they had been according to the contract, which is best stated by choice (C). The department store's acceptance of the three food processors did not waive its right to collect damages for the defect in quality. Thus, (A) and (B) are wrong. Having accepted the nonconforming food processors, the department store's damages would be the difference between the value of the food processors as received and what they would have been worth if they had been as warranted, plus foreseeable incidental and consequential damages. (D) is wrong because the measure of damages is based on market value rather than cost. Also, the agreement with the restaurant was to accommodate the department store only and was not foreseeable by the manufacturer.

A state bans the use of disposable diapers to reduce the volume of nonbiodegradable material in its landfills. The ban was a boon for diaper services within the state, but many parents of young children were displeased with the use of conventional diapers. With support from retail establishments that lost business from the disposable diaper ban, a grass roots coalition formed to fight the ban funded a study showing that the trucks and cleaning supplies used by diaper services within the state harmed the environment more than disposable diapers. The coalition and retailers then filed suit seeking to have the ban on disposable diapers declared unconstitutional.

If the court strikes down the statute, on which of the following constitutional provisions would its decision most likely be based?

AThe Equal Protection Clause of the Fourteenth Amendment.

BThe Due Process Clause.

CThe Impairment of Contracts Clause.

DThe Privileges or Immunities Clause of the Fourteenth Amendment.

B

Of the choices presented, the only likely basis to strike down the statute is under the Due Process Clause as a violation of substantive due process. Substantive due process tests the reasonableness of a statute; it prohibits arbitrary governmental action. Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest. The retail sale of diapers is not a fundamental right, and so a challenger must prove that there is no rational basis for the statute. Almost any law can be justified under the rational basis standard. The law need not be the best law for accomplishing the government's goal. Thus, even if it is true that the disposable diaper ban causes more pollution than it prevents, because the ban is rationally related to reducing the volume of trash in landfills, the challenge is unlikely to succeed. Nevertheless, none of the other choices states a viable ground for invalidating the statute, and so (B) is the best choice. (A) is wrong because equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people), and here there is no classification—under the statute no one can sell disposable diapers for use within the state. Thus, an equal protection argument is not applicable. (C) is wrong because the Impairment of Contracts Clause prohibits only the substantial impairment of existing contracts (and there are exceptions even where there is substantial impairment), and nothing in the facts indicates that forbidding the retail sale of disposable diapers would substantially impair any existing contract. (D) is wrong because the privileges and immunities covered by the Fourteenth Amendment are those attributes peculiar to United States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers). The statute here does not affect such rights.

On February 1, the owner of a bowling alley read in a magazine an ad from a major manufacturer of bowling balls offering sets of 40 balls in various weights and drilled in various sizes for $10 per ball. The owner immediately filled out the order form included in the ad for the 40 balls and deposited it, properly stamped and addressed, into the mail. On February 2, the bowling alley owner received in the mail a letter from the manufacturer, sent out as part of its advertising campaign, stating in relevant part that it will sell the bowling alley owner 40 bowling balls at $10 per ball. A day later, on February 3, the manufacturer received the bowling alley owner's order. On February 4, the balls were shipped.

On what day did an enforceable contract arise?

AFebruary 1, the day the bowling alley owner deposited his order in the mail.

BFebruary 2, the day the bowling alley owner received the letter from the manufacturer.

CFebruary 3, the day the manufacturer received the bowling alley owner's letter.

DFebruary 4, the day the balls were shipped.

D

The contract arose when the balls were shipped. The general rule is that an offer can be accepted by performance or a promise to perform unless the offer clearly limits the method of acceptance. Here, the offer would be the bowling alley owner's order, because a magazine ad is usually held to be merely solicitation to accept offers rather than an offer. Thus, the manufacturer accepted and the contract was formed when it shipped the balls. (A) is wrong because the bowling alley owner's order was an offer to buy, and no contract could be formed until that offer was accepted. (B) is wrong because this is a case of crossing offers; even though both offers contain the same terms, they do not form a contract. (C) is wrong because no contract will be formed until there has been an acceptance, and, as stated, the bowling alley owner's letter was merely an offer.

A driver drove into an intersection and struck a pedestrian. The driver immediately left his car and ran to the pedestrian. Before the ambulance arrived, the driver said to the pedestrian, "It was all my fault; I'm sorry I ran a red light." The driver then said, "I'll pay for all your medical expenses." The pedestrian sued the driver for his injuries and, at the resulting trial, the pedestrian wished to testify to the two statements made by the driver. The defense objected.

How should the court rule?

Press Enter or Space to submit the answerABoth of the driver's statements are admissible.CorrectBThe driver's statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian's medical expenses is inadmissible.CThe driver's statement acknowledging that he ran a red light is inadmissible, but his promise to pay the pedestrian's medical expenses is admissible.DNeither of the driver's statements is admissible.

The court should rule that the driver's statement acknowledging that he ran a red light is admissible, but his promise to pay the pedestrian's medical expenses is inadmissible. The driver's statement acknowledging that he ran a red light is admissible as a statement by an opposing party (i.e., a statement made by a party and offered against that party), while his promise to the pedestrian is inadmissible as an offer to pay medical expenses. The Federal Rules of Evidence treat statements by an opposing party as nonhearsay. In his first statement, the driver acknowledges that he ran the red light, and that the accident resulting in the pedestrian's injuries was his fault. This statement qualifies as a statement by a party-opponent. Evidence that a party paid (or offered to pay) an injured party's medical bills is not admissible to prove liability for the injuries. Such payment (or offer to pay) might be prompted solely by humanitarian motives. The driver's second statement is clearly an offer to pay the medical bills of the pedestrian, an injured party. Thus, the statement is not admissible to prove liability for the pedestrian's injuries (and proving liability appears to be the only reason the pedestrian has for attempting to introduce the statement into evidence). Note that had this been a single statement, the outcome would have been the same, because an admission of fact accompanying offers to pay medical expenses is admissible. (A) is wrong because, as explained above, the driver's second statement is inadmissible. (C) is wrong as to both statements because the statement about running the red light is admissible and the offer to pay is inadmissible. (D) is wrong because the statement about running the red light is admissible evidence.

A recent law school graduate was offered a job as an aide by a state legislator. The legislator told the graduate that before she could begin working, she had to take the following loyalty oath: "I swear to uphold our state and federal Constitutions; to show respect for the state and federal flags; and to oppose the overthrow of the government by violent, illegal, or unconstitutional means." The graduate told the legislator that the oath is unconstitutional and refused to take the oath.

Is the graduate correct?

Press Enter or Space to submit the answerAYes, as to the promise to uphold the state and federal Constitutions.CorrectBYes, as to the promise to respect the flag.CYes, as to the promise to oppose the overthrow of the government.IncorrectDNo, as to all three provisions.

The graduate is correct as to the promise to respect the flag, but incorrect as to the other two promises. The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution; hence, (A) and (C) are incorrect. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds. Thus, (B) is correct and (D) is incorrect.

A small processor of specialized steel agreed in writing with a small manufacturer of children's toys that it would supply, and the manufacturer would buy, all of the manufacturer's specialized steel requirements over a period of years at a set price per ton of steel. Their contract did not include a nonassignment clause. Recently, the toy manufacturer decided to abandon its line of steel toys, so it made an assignment of its rights and delegation of its duties under the contract to a toymaker many times larger. The large toymaker notified the steel processor of the assignment and relayed to the processor its good faith belief that its requirements will approximate those of the assignor.

Must the steel processor supply the requirements of the large toymaker?

Press Enter or Space to submit the answerAYes, because there was no nonassignment clause in the contract.CorrectBYes, because the large toymaker acted in good faith to assure the steel processor that its requirements will approximate those of the small manufacturer into whose shoes it stepped.CNo, because requirements contracts are not assignable under the UCCDNo, because the steel processor did not give prior approval of the assignment.

A small processor of specialized steel agreed in writing with a small manufacturer of children's toys that it would supply, and the manufacturer would buy, all of the manufacturer's specialized steel requirements over a period of years at a set price per ton of steel. Their contract did not include a nonassignment clause. Recently, the toy manufacturer decided to abandon its line of steel toys, so it made an assignment of its rights and delegation of its duties under the contract to a toymaker many times larger. The large toymaker notified the steel processor of the assignment and relayed to the processor its good faith belief that its requirements will approximate those of the assignor.

Must the steel processor supply the requirements of the large toymaker?

Press Enter or Space to submit the answerAYes, because there was no nonassignment clause in the contract.CorrectBYes, because the large toymaker acted in good faith to assure the steel processor that its requirements will approximate those of the small manufacturer into whose shoes it stepped.CNo, because requirements contracts are not assignable under the UCCDNo, because the steel processor did not give prior approval of the assignment.

B

Because the large toymaker acts in good faith in setting its requirements to approximately those of the small manufacturer into whose shoes it stepped, the contract may be assigned. The contract in this question is a "requirements" contract: The steel processor must sell the small manufacturer of children's toys all the specialized steel it requires for its toys. Generally, the right to receive goods under a requirements contract is not assignable because the obligor's duties could change significantly. In fact, here, a significant change would seem possible because the large toymaker is a larger company than the small manufacturer and its needs could be greater. However, the UCC allows the assignment of requirements contracts if the assignee acts in good faith not to alter the terms of the contract. [UCC §2-306] (The UCC applies here because goods are involved.) Thus, assuming the large toymaker's requirements remain about the same as the small manufacturer's requirements, the steel processor would be required to honor its contract, now assigned to the large toymaker. (A) is wrong because requirements contracts may be nonassignable, even without a nonassignment clause. Thus, the clause would be irrelevant. The only thing that could allow assignment of a requirements contract is a good faith limitation, as addressed in choice (B). (C) is wrong because the UCC does allow requirements contracts to be assigned, as long as the good faith limitation is satisfied. (D) is similarly incorrect. The UCC would allow assignment without approval by the obligor if there is a good faith limitation on the requirements.

A town adopted an ordinance providing that a person must have been a resident of the town for at least one year to be eligible to vote in school board elections. A resident who moved to the town seven months ago attempted to register to vote in the school board elections scheduled for the next month. However, the town clerk refused to register the resident because he will not have resided in the town for a full year prior to the election. The resident filed a class action suit on behalf of all of the new residents of the town, challenging the validity of the one-year residency requirement.

Which of the following statements is correct?

Press Enter or Space to submit the answerAIf the resident's suit is not heard before the election, it will be dismissed as moot, because the resident will have met the residency requirement by the time of the next annual election.CorrectBThe resident will prevail even if the matter is not decided until after next month's election.IncorrectCAs long as there is some legitimate purpose for the one-year residency requirement, such as the need to prepare voting lists, the residency requirement will be upheld.DThe resident will lose because one-year residency requirements have been held to be permissible restrictions on the right to vote in local elections.

B

The resident will prevail even if the matter is not decided until after the election, because the suit is not moot and the residency requirement is unconstitutional. The resident's suit is not moot even if the matter will not be decided until after the election because other members of the class might have a live controversy. Under the case and controversy requirement of the Constitution, there must be a real, live controversy at all stages of the suit. If through the passage of time, the controversy between the parties is resolved, the case is said to be moot. However, there are exceptions to the mootness doctrine. In a class action, it is not necessary that the suit by the named plaintiff be viable at all stages, as long as the claim is viable by some member of the class. Thus, the suit here would not be moot. Moreover, the residency requirement here violates the resident's fundamental rights to vote and to interstate travel. A restriction on the right to vote is subject to strict scrutiny and is valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the Equal Protection Clause by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the Supreme Court has struck down longer durational requirements for lack of a compelling justification. Thus, the one-year requirement here probably unconstitutionally impinges on the right to vote. The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason). Thus, the requirement is invalid. (A) is incorrect because, as indicated above, the case will not be moot since other members of the class might have a live controversy. (C) is incorrect because it applies the wrong standard. Because fundamental rights are affected by the residency requirement here, the government must show a compelling justification; a mere rational or legitimate basis is not enough. (D) is incorrect because, as stated above, the Supreme Court has found that there was no compelling interest for a one-year residency requirement in order to vote.

A retailer entered into an oral contract with an office supply wholesaler to buy 100 file boxes for an upcoming back to school sale at the retailer's store. The wholesaler agreed to deliver the file boxes in two weeks at a cost of $4 per file box. A week later, the retailer phoned the wholesaler and asked if she could increase her order to 200 file boxes. The wholesaler agreed. The wholesaler delivered the 200 file boxes as promised, but the retailer accepted only 150 upon discovering that she lacked storage space for all 200.

May the wholesaler recover damages with respect to the 50 file boxes that were not accepted?

Press Enter or Space to submit the answerAYes, because the retailer accepted $600 worth of file boxes.IncorrectBYes, because the modification was for less than $500.CorrectCNo, because the contract as modified was for $800.DNo, because the wholesaler is a merchant with respect to file boxes.

C

The wholesaler may not recover damages. Under the UCC Statute of Frauds, a contract for the sale of goods for $500 or more is unenforceable unless evidenced by a writing signed by the party sought to be held liable. The original contract was for $400 and, thus, was not within the Statute. Whether a modification must be in writing to be enforceable depends on whether the entire contract price as modified is within the Statute. Here, the retailer and the wholesaler modified their original contract to 200 file boxes, bringing the total price to $800. Thus, the modification was unenforceable under the Statute of Frauds, and the wholesaler cannot collect damages with respect to the 50 unaccepted file boxes. (A) is incorrect. Acceptance is an exception to the Statute of Frauds—but only to the extent of the goods accepted. That is, an oral contract for the sale of goods for $500 or more is enforceable to the extent the goods are accepted. Here, the original contract for 100 boxes is enforceable, but the modification is not. However, since the retailer accepted 50 additional boxes, the modified contract is enforceable to the extent of the additional 50 boxes accepted. The fact that the accepted amount meets the Statute of Frauds $500 threshold does not make the contract enforceable for all 200. (B) is incorrect because, as noted above, when determining whether a contract for the sale of goods is enforceable, we look at the whole contract price as modified; the price of the modification itself does not matter. (D) is incorrect because the fact that the wholesaler is a merchant with respect to the goods being sold (file boxes) has no bearing on the enforceability of the contract here.

Congress passed legislation banning the hunting of snipe birds within the United States. The range of the snipe is quite limited; they are found primarily in only one state, although they migrate annually to several nearby states. Hunters from throughout the United States have traditionally traveled to the snipe's home state during snipe hunting season, bringing considerable revenue into the state. A state statute allows hunting of snipe during a two-week period in November and charges a $50 license fee for state residents and a $250 fee for hunters from other states. The bag limit is one snipe bird per licensed hunter.

Is the state statute allowing snipe hunting valid?

Press Enter or Space to submit the answerAYes, because states have the right to control their own natural resources and wildlife.BYes, because the power exercised is reserved to the states by the Tenth Amendment.CorrectCNo, because of the Supremacy Clause.IncorrectDNo, because of the Commerce Clause.

C

The state statute is invalid because of the Supremacy Clause. Under the Clause, if the federal government adopts legislation that it has the power to adopt, the federal legislation is supreme, and a conflicting state law is rendered invalid. The federal law here, banning the hunting of snipe, is within the federal government's power under the Commerce Clause, which gives the government power to regulate anything that might affect interstate commerce. Because the birds themselves are found in a few states, they probably cross state lines. Also, hunters come from out of state and generate revenue in the state, so interstate commerce is involved. The state law directly conflicts with the federal law because it allows hunting of snipe. Therefore, the state law will be held invalid under the Supremacy Clause. (A) is incorrect because, while states do have a limited right to control their natural resources, the right is concurrent with the federal government's power, and cannot be exercised to conflict with federal regulation in the area. Note further that a state's power to control its natural resources is also limited even if Congress does not act: A state may not adopt a law discriminating against interstate commerce or excessively burdening interstate commerce, even absent federal legislation. Regarding (B), the Tenth Amendment reserves all powers not granted to the federal government to the states. (B) is incorrect because the Court will not likely strike down on Tenth Amendment grounds a federal regulation that subjects state governments to the same regulations as apply to the private sector. In such cases, the states' interests are best protected by the states' representation in Congress. (D) is incorrect because the Commerce Clause does not render the state's action invalid; it merely gives Congress the power to act. It is the Supremacy Clause that makes the interfering state law invalid.

In a criminal battery case brought against the defendant, the prosecutor asked the court to take judicial notice of the fact that a car driven from Chicago to Detroit has to cross state lines. The defense attorney raised no objection, and the judge declared that she was taking judicial notice of the fact as requested by the prosecution.

What is the effect of such judicial notice?

Press Enter or Space to submit the answerIncorrectATo raise an irrebuttable presumption.BTo satisfy the prosecutor's burden of persuasion on that issue.CTo shift the burden of persuasion on that issue to the defendant.CorrectDThat the judge should instruct the jury that it may, but is not required to, accept the noticed fact as conclusively proven.

D

The effect of the judge's noticing that a car driven from Chicago to Detroit must cross state lines is that the judge will now instruct the jury that it may, but is not required to, accept that fact as conclusively proven. Under the Federal Rules, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. [Fed. R. Evid. 201(f)] Because this question deals with a prosecution for criminal battery, the applicable rule is that the jury be instructed that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so. (A) would be correct if this were a civil case. In such an instance, the jury would be instructed to accept as conclusive the judicially noticed fact. This would have the effect of raising an irrebuttable presumption. (B) is incorrect because, in a criminal case, the prosecution has the burden of proving every element of the crime beyond a reasonable doubt. Only the jury can decide, after all of the evidence is in, whether the burden of persuasion is satisfied. (C) is incorrect because the burden of persuasion does not shift from party to party during the course of the trial. The burden of persuasion is never on a criminal defendant.

The owner of an old car parked it in front of his house with a "for sale" sign in the windshield. In response to an inquiry from his neighbor, the car owner said that he would take $400 for the car. The neighbor responded, "You've got a deal." Because it was a Sunday, and the banks were closed, the neighbor told the car owner that he would come to his house with the $400 the next day at about 6 p.m. The car owner said that was fine. At 9:15 the next morning, the car owner called his neighbor and told him that when they had talked the previous day, he forgot that he had just put two new tires on that car and that he would need an extra $50 to cover their cost. The neighbor agreed to bring $450 in cash to the car owner's house at about six o'clock.

Is the neighbor legally bound to pay the car owner the additional $50?

Press Enter or Space to submit the answerAYes, because the original contract was not in writing.CorrectBYes, because the contract, as modified, does not need to be in writing.CNo, because no additional consideration was given for the oral modification.DNo, because neither the neighbor nor the car owner is a merchant.

B

The neighbor must pay the car owner the additional $50 because the parties have an enforceable contract. A contract for the sale of goods (the car) was formed when the neighbor said, "You've got a deal." The parties then orally agreed to a modification of the contract when the car owner called his neighbor the next morning. Under the Statute of Frauds provision in the UCC, which applies to all contracts for the sale of goods, a promise requires a writing signed by the party to be charged to be enforceable if it is for the sale of goods of $500 or more. Here, the contract as modified is under $500, so it is enforceable even though it is not in writing. (A) is incorrect because the fact that the original contract was not in writing is irrelevant to the issue of whether the modified contract is enforceable. If the modification had caused the contract to reach or exceed $500, the car owner could not have collected the additional $50 from his neighbor. (C) is incorrect because under UCC section 2-209, no consideration is needed for a good faith modification of a contract for the sale of goods. (D) is incorrect because the UCC rules on modifications and the Statute of Frauds apply to all contracts for the sale of goods, not just those between merchants.

The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant's aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, "I know I don't have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident!"

Should this testimony be admitted?

Press Enter or Space to submit the answerAYes, because it is a statement by an opposing party.BYes, because it falls within the hearsay exception for dying declarations.CYes, because it is a statement by an opposing party and falls within the hearsay exception for dying declarations.CorrectDNo, because it is inadmissible hearsay.

D

The testimony is inadmissible. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. An out-of-court statement that incorporates other hearsay is "hearsay within hearsay." Hearsay within hearsay is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule. Here, the aunt's statement incorporating the defendant's statement constitutes hearsay within hearsay. Therefore, both statements must fall within an exception to the hearsay rule to be admissible. The defendant's statement to his aunt ordinarily would be hearsay because it is being offered to prove the truth of the matter asserted—that he intended to kill his mother. However, statements by a party-opponent (commonly called admissions) are admissible nonhearsay under the Federal Rules. Thus, the defendant's statement is admissible as a statement by a party-opponent. However, the aunt's statement made to the nurse regarding the defendant's statement must also fall within an exception to the hearsay rule. Because no exception applies to that statement, the entire testimony is inadmissible. (A) is incorrect because, while it correctly states that the defendant's statement is a statement by an opposing party, it incorrectly deems the statement admissible because it fails to address the hearsay within hearsay issue discussed above. (B) is incorrect. A declaration made by the now-unavailable declarant, while believing that her death was imminent, is admissible if it concerns the cause or circumstances of what she believes to be her impending death. Here, the statement was made while the aunt believed that her death was imminent; however, the statement did not concern the cause or circumstances of her death and therefore does not qualify as a dying declaration. (C) is incorrect for the same reason. While the defendant's statement is an opposing party's statement, the aunt's statement is not a dying declaration, as discussed above.